[Cite as State v. Slider,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 09CA41 : vs. : Released: November 22, 2010 : PATRICK SLIDER, : DECISION AND JUDGMENT : ENTRY Defendant-Appellee, : : and : : A-1 BAIL BONDS, INC., et al. , : : Appellants. : _____________________________________________________________ APPEARANCES:

John M. Halliday, Bertram & Halliday, LLC, Marietta, Ohio, and Gary A. Rosenhoffer, Gary A. Rosenhoffer, LLC, Batavia, Ohio, for Appellants, A-1 Bail Bonds, Inc. and American Contractors Indemnity Company.

James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Washington County Assistant Prosecutor, Marietta, Ohio, for Appellee, State of Ohio.1 _____________________________________________________________

McFarland, P.J.:

{¶1} This is an appeal from an order of the Washington County Court

of Common Pleas, issued after conducting a hearing pursuant to remand

from this Court. Originally, the trial court ordered forfeiture of a bail bond

1 Defendant-Appellee, Patrick Slider, has not filed a brief or otherwise participated in the appeal of this matter. Washington App. No. 09CA41 2

and entered judgment against “Richard Mayle of A-1 Bail Bonds” in the

amount of $60,000.00. On remand, the trial court determined, based in part

on the agreement of the parties, that the original judgment was in fact taken

against Appellants, rather than Richard Mayle, personally. On appeal,

Appellants now contend that 1) upon remand, the trial court lacked subject

matter jurisdiction to render judgment against them, as sureties; 2) the trial

court prejudicially erred in granting a judgment against A-1 Bail Bonds, Inc;

3) the trial court committed prejudicial error in determining that the issue of

remission is res judicata; and 4) the trial court committed prejudicial error by

failing to remit all or part of the forfeited bond.

{¶2} Because we conclude that the trial court possessed subject matter

jurisdiction to clarify its own order pursuant to our directions on remand, we

overrule Appellants’ first assignment of error. Because Richard Mayle

signed the Recognizance of Accused as an attorney in fact of A-1 Bail

Bonds, Inc., which is a named agent of American Contractors Indemnity

Co., also known as Safety National Casualty Co., expressly agreeing to be

joint and severally responsible in the event of default, we cannot conclude

that the trial court prejudicially erred in granting judgment against A-1 Bail

Bonds, Inc. As such Appellants’ second assignment of error is overruled. Washington App. No. 09CA41 3

{¶3} Further, because we find that Appellants’ did not request

remission prior to the first appeal of this matter and that their subsequent

request for remission went beyond the scope of remand, we cannot conclude

that the trial court committed prejudicial error in determining that the issue

of remission was res judicata. Thus, Appellants’ third assignment of error is

overruled. Finally, in light of our disposition of Appellants’ third

assignment of error, we will not address Appellants’ fourth assignment of

error and it is therefore overruled. Accordingly, the decision and judgment

of the trial court is affirmed.

FACTS

{¶4} As we noted in our prior consideration of this matter, on

December 10, 2007, a multi-count felony indictment was filed against

Patrick Slider. State v. Slider, et al.,

,

,

(hereinafter “Slider I”). On January 14, 2008, a $60,000.00

bond was posted on Slider’s behalf by “Richard Mayle2 with American

Contractors Indemnity Co.” When Slider failed to appear for his scheduled

trial on August 11, 2008, the trial court revoked his bond and issued a

warrant for his arrest. The trial court further ordered the bond forfeited and

set a forfeiture hearing for September 3, 2008.

2 The record reflects that Appellant, Richard Mayle, is affiliated with A-1 Bail Bonds, Inc, which is an agent of American Contractors Indemnity Company, also known as Safety National Casualty Co. Washington App. No. 09CA41 4

{¶5} Notice of the forfeiture hearing was mailed to all parties,

including Richard Mayle and all sureties at their respective addresses by

both regular and certified mail on August 12, 2008. Appellants counsel,

John Halliday, appeared at the forfeiture hearing, along with Charles Miller,

principal of A-1 Bail Bonds, on September 3, 2008; however, they failed to

produce Slider for the hearing. Although Appellants requested that the trial

court grant additional time to locate Slider, the trial court denied Appellants’

request and granted judgment against Slider, as well as “the holder of the

bond, Richard Mayle of A-1 Bail Bonds” in the amount of the bond,

$60,000.00, and filed a judgment entry the same day.

{¶6} Slider was subsequently arrested near Taylor, Michigan, on

September 7, 2008, and was returned to Washington County on September

8, 2008. On September 9, 2008, Appellants, through their counsel, John

Halliday, filed a Motion of Sureties to be Released3, simply requesting

release from further obligation as “Patrick R. Slider is now incarcerated in a

detention facility or jail near Taylor, Michigan.” The State opposed the

motion and a hearing was held on September 18, 2008. Charles Miller, on

behalf of A-1 Bail Bonds, Inc., again attended the hearing with counsel.

3 Contrary to our initial recitation of the facts in our prior consideration of this matter in Slider I, the Motion of Sureties to be Released was filed by attorney Halliday, as “Attorney for Sureties,” listed as “American Contractors Indemnity Company, A-1 Bail Bonds, Inc., and/or Charles J. Miller Bonding, Co.,” rather than by Richard Mayle, individually. Thus, Appellants herein clearly perceived that judgment had been taken against them, as they moved for release. Washington App. No. 09CA41 5

After determining that R.C. 2937.40 did not authorize Appellants’ release

based upon the facts before it, as requested by A-1 Bail Bonds, the trial court

denied Appellants’ motion. At that point, “Richard Mayle of A-1 Bail

Bonds”, through attorney John Halliday, filed a notice of appeal from the

trial court’s decision.

{¶7} In Slider I at ¶14, we affirmed the decision of the trial court, but

determined that an ambiguity existed “with respect to the capacity in which

Appellant [then Richard Mayle] signed the Recognizance of Accused and

whether or not he intended to be personally responsible for the debt.” As

such, the matter was remanded for the limited purpose of having the trial

court make “further findings of fact as to the intent of the parties.” As a

result, the trial court held a remand hearing on September 15, 2009.

Appellants herein were represented by John Halliday, the same attorney that

represented them prior to the first appeal, and who represented Mayle during

the first appeal of this matter.

{¶8} At the hearing, all parties agreed that Mayle did not intend to be

personally responsible for the bond. Further, the parties agreed that the

judgment proceedings need not start over, but rather that the purpose of

remand was simply to correct a semantics problem in the first judgment

entry. Additionally, Appellants agreed, through counsel, that the original Washington App. No. 09CA41 6

judgment should have been worded against A-1 Bail Bonds and/or American

Contractors Indemnity Company.

{¶9} Based upon the stipulations by the parties at the hearing, the trial

court issued a decision and entry on September 30, 2009, noting that

judgment had previously been entered against the bonding companies but

that the order had been remanded on the limited issue of whether Richard

Mayle was personally liable on the bond. The court made reference in its

decision to the fact that the attorneys for both sides stipulated that Mayle

should not be held personally responsible but that judgment should enter

against A-1 Bail Bonds and American Contractors Indemnity Company.

The court went on to address Appellants post-remand motion for remission,

despite its conclusion that the motion was barred by the doctrine of res

judicata. The trial court ultimately denied the motion for remission.

{¶10} Appellants, A-1 Bail Bonds, Inc. and American Contractors

Indemnity Company now appeal, assigning the following errors for our

review.

ASSIGNMENTS OF ERROR

“I. UPON REMAND, THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO RENDER JUDGMENT AGAINST THESE APPELLANTS/SURETIES.

II. THE TRIAL COURT PREJUDICIALLY ERRED IN GRANTING A JUDGMENT AGAINST A-1 BAIL BONDS, INC. Washington App. No. 09CA41 7

III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DETERMINING THAT THE ISSUE OF REMISSION WAS RES JUDICATA.

IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO REMIT ALL OR PART OF THE FORFEITED BOND.”

ASSIGNMENT OF ERROR I

{¶11} In their first assignment of error, Appellants contend that the

trial court lacked subject matter jurisdiction upon remand to render judgment

against them. In making this argument, Appellants argue that the trial court

“was without subject matter jurisdiction when it granted judgment against

[them] on September 30, 2009[,]” during the remand hearing. For the

following reasons, we disagree.

{¶12} As set forth above, in our initial consideration of this matter, we

concluded that “an ambiguity exist[ed] with respect to the capacity in which

Appellant [then Richard Mayle] signed the Recognizance of Accused and

whether or not he intended to be personally responsible for the debt.” Slider

I at ¶14. Thus, we reverse[d] the decision of the trial court and remand[ed]

th[e] matter for further findings of fact as to the intent of the parties.”

It

was pursuant to this directive that the trial court held a hearing on remand.

{¶13} Appellants’ counsel, John Halliday, was present at the remand

hearing held on September 15, 2009. At the hearing, the following exchange Washington App. No. 09CA41 8

took place regarding the intent of the parties with respect to responsibility on

the bond:

Mr. Halliday: First of all, Judge, the issue, the first issue before this Court is, upon remand, is whether or not Richard Mayle personally is liable on the judgment. I don’t believe he is. I believe it should be A – A-1 Bail Bonds, and/or American Contractors Indemnity on the judgment. It’s my understanding the State has no objection to that.

The Court: Is that true?

Ms. Vessels: Your Honor, I don’t believe that Mr. Mayle personally is even – I believe he’s judgment-proof, essentially, so it’s really – we’re – that’s true, we don’t have –

Thus, the parties stipulated upon remand that Richard Mayle did not intend

to be personally responsible when he signed the bond and that the judgment

was intended to be taken against A-1 Bails Bonds and/or American

Contractors Indemnity.

{¶14} Further, the remand hearing transcript contains the following

with respect to the procedural issues in amending the original judgment

entry to reflect the intent of the parties:

The Court: So you could – believe now, we have to start the procedures over again against your client?

***

The Court: Is it too late to take judgment against A-1?

Ms. Vessels: I don’t believe so, because – Washington App. No. 09CA41 9

Mr. Halliday: I thought that’s what we were doing here, was just revising the judgment entry to –

Ms. Vessels: Yes.

Mr. Halliday: -- to correctly reflect the proper parties.

The Court: So you would not object to just revising it and putting the judgment against A-1?

Mr. Halliday: Well, because the Court specifically found that the bond was forfeited, okay?

The Court: Um-hum.

Mr. Halliday: And that’s when we were here before. Right? Is that –

The Court: Um-hum.

Mr. Halliday: I mean, does everybody agree – do you agree with me there, that the Court found –

Ms. Vessels: Yes. Yes, it was forfeited.

Mr. Halliday: -- that the bond was forfeited, and therefore it entered the judgment amount against what was supposed to be the bonding company, was my understanding, so that way back when the Court did that, the – judgment should have read, “Judgment is hereby rendered in favor of the State of Ohio against the Defendant and A-1Bail Bonds and American Contractors Indemnity in the amount of X.” And I think that was the – one of the narrow issue, with which we’ve been remanded here was, was Mr. Slider4 personally on there? Because I believe the Court found all of the other prerequisites, and that’s why I don’t think we have to go back and redo this whole thing. The Court already found that the – bond is forfeited and

4 We assume that Mr. Halliday meant to state Mr. Mayle at this juncture of the hearing, as Mr. Slider’s name was clearly included in the judgment entry. Washington App. No. 09CA41 10

ordered judgment, and I believe that all parties were here; it was just the semantics of the judgment, the – the Court of Appeals found remandable.

***

Ms. Vessels: So, I – I don’t – I think that that – the Court is expecting us to perhaps just file an amended judgment entry, perhaps determining whether or not it’s Richard Mayle specifically or A-1 Bail Bonds and Contractors Indemnity, because that’s where the money is, and that’s who actually posted the cash or surety.

The Court: Okay. That’ll be the order. It seems the parties are agreeing on that. So that’ll be the order of the Court.

***

The Court: Okay. So, we’re agreed now, that the – the entry is modified, that just to be clear on the record, to change it to A-1 and that American Indemnity. And you’ll do that, Attorney Vessels?” (Emphasis added).

{¶15} In light of the foregoing, it is clear that Appellants understood,

both at the time of the time of original order, and on remand, that the

original judgment was intended to be against them, as sureties, not against

Richard Mayle, individually. The fact that they filed a motion for release

prior to the first appeal of this matter further supports this rationale.

Additionally, as set forth above, Appellants clearly represented to the trial

court their understanding that the purpose of the remand hearing was simply

to correct the language or “semantics” of the original order, and that there

was no need to start the judgment proceedings over again. As such, Washington App. No. 09CA41 11

Appellants cannot now complain that the trial court lacked subject matter

jurisdiction to enter judgment against them on remand. As stated, judgment

was not entered against them for the first time on remand, the original

judgment order was simply clarified to reflect that the judgment was against

A-1 Bail Bonds, rather than Mayle individually.5 Accordingly, we conclude

that Appellant’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

{¶16} In their second assignment of error, Appellants contend that the

trial court erred in granting a judgment against A-1 Bail Bonds, Inc.

Appellants base this contention on “basic principles of suretyship and

guaranty” without any other argument or citation to authority, and simply

claim that “[j]oint and several liability is improper.” However, in our view,

Appellants’ assertions regarding the liability of a surety and principal are

misplaced in light of the fact that the Recognizance of Accused, which

appears on the record, provided that Patrick Slider and “Richard Mayle with

American Contractors Indemnity Co. * * * jointly and severally

acknowledged themselves to owe the State of Ohio the sum of $60,000.00”

in the event of default. See Peebles Elderly Housing Ltd. Partnership v.

5 However, we take this opportunity to address the fact that a new certificate of judgment was filed post- remand, indicating that judgment was taken on September 29, 2009, against A-1 Bail Bonds, Inc. and American Contractors Indemnity Company, also known as Safety National Casualty Corporation. Instead of obtaining a new certificate of judgment, the original certificate of judgment should have been amended to reflect the clarification by the trial court on remand. Washington App. No. 09CA41 12

Titan Indem. Co. (Sept. 15, 1997), Adams App. No. 96CA631,

.

{¶17} Attached to the Recognizance of Accused is a power of

attorney document which appoints A-1 Bail Bonds, Inc. a named agent of

American Contractors Indemnity, Co. This power of attorney form was also

signed by Mayle, as attorney in fact. Thus, Mayle, as an attorney in fact of

A-1 Bail Bonds, Inc., which is a named agent of American Contractors

Indemnity Co., also known as Safety National Casualty Co., signed the

bond, thereby binding the sureties on the bond when Slider failed to appear

and the trial court ordered the bond forfeited. Slider I at ¶13; citing, State v.

Sexton (1999),

,

; State v. Scherer

(1995),

,

; R.C. 1337.092.

{¶18} We note that Appellants allege in their brief that “the Clerk of

Courts released the Sureties from Slider’s $60,000.00 bond effective April

23, 2009,” and attach a copy of a document purporting to be that release to

their brief on appeal. We presume Appellants mention this because

generally, when a principal is discharged so is the surety. See Dressler

Properties, Inc. v. Ohio Heart Care, Inc. Stark App. No. 2004CA00231,

(The general rule is that whatever discharges the principal

discharges the surety. If the principal debtor has been released by the Washington App. No. 09CA41 13

creditor, the guarantor or the surety also will be released.”). However, other

than appearing as an attachment to Appellants’ brief, it does not appear that

the document was ever filed or made part of the record and, therefore, it is

not properly before us for review. Accordingly, Appellants’ second

assignment of error is overruled.

ASSIGNMENT OF ERROR III

{¶19} In their third assignment of error, Appellant’s contend that the

trial court committed prejudicial error in determining that the issue of

remission is res judicata. As set forth above, this matter was remanded for

the limited purpose of determining the intent of the parties with regard to

financial responsibility on the forfeited bond. Appellants’ argument hinges

on their assertion that there was no binding or enforceable judgment against

them until the September 30, 2009, decision and entry issued after the

remand hearing. However, we rejected this assertion in our analysis of

Appellant’s first assignment of error. Instead, based upon our above

reasoning, the hearing on remand simply served to clarify who in fact the

original judgment was taken against: 1) Richard Mayle, individually; 2)

Richard Mayle and the sureties; or 3) the sureties, with Richard Mayle

serving merely as an agent or attorney in fact. Washington App. No. 09CA41 14

{¶20} The purpose of remand was not to completely start the

judgment proceedings over again, but merely to clarify the original intent of

the parties. Thus, we again reject any argument that there was no judgment

against Appellants until September 30, 2009. This reasoning is further

supported by the fact that Appellants continued to appear, through counsel,

along with their representative Charles Miller after the original judgment

was taken, and sought release from the bond.

{¶21} In our view, this issue is a “scope of remand” question,

although it has been reasoned that “[i]ssues regarding the scope of the

remand, however, are best considered using res judicata principles.” State v.

Taylor, Cuyahoga App. No. 79475,

; relying on, State v.

Gillard (1997),

,

,

. “The

doctrine of res judicata requires a plaintiff to present every ground for relief

in the first action, or be forever barred from asserting it.” Montello v.

Ackerman, Lake App. No. 2010-L-007, 2010-Ohio- 3459, citing, National

Amusements, Inc. v. Springdale (1990),

,

.

{¶22} As discussed at length in our prior opinion regarding this

matter, Appellants herein moved for release of the bond prior to the first

appeal, rather than remission. Because there was a valid judgment against Washington App. No. 09CA41 15

the sureties at the time of the first appeal, and because Appellants could

have, and perhaps should have moved for remission when they moved for

release below, but failed to do so, they were barred from raising the issue on

remand. See, State v. Gillard, supra, (overruling propositions of law without

consideration that were not raised on appeal and were beyond the scope of

remand, based on the doctrine of res judicata.). As such, we cannot

determine that the trial court committed prejudicial error in determining that

the issue of remission was res judicata. Accordingly, Appellants’ third

assignment of error is overruled.

ASSIGNMENT OF ERROR IV

{¶23} In light of our disposition of Appellants’ third assignment of

error which concluded that the trial court did not commit prejudicial error in

determining the issue of remission was res judicata, we will not consider

Appellants’ fourth and final assignment of error, which contends that the

trial court committed prejudicial error in failing to remit all or a portion of

the bond. Gillard, supra. As such, Appellant’s fourth assignment of error is

overruled. Accordingly, the decision and judgment of trial court is affirmed.

JUDGMENT AFFIRMED. Washington App. No. 09CA41 16

Kline, J., concurring.

{¶24} I concur in judgment and opinion as to the first, second, and

fourth assignments of error. I concur in judgment only as to the third

assignment of error because I believe that the appropriate doctrine is law of

the case rather than res judicata. Washington App. No. 09CA41 17

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J.: Concurs in Judgment and Opinion as to Assignments of Error I, II, & IV, and Concurs in Judgment Only as to Assignment of Error III. Kline, J.: Concurs in Judgment and Opinion as to Assignments of Error I, II, & IV, and Concurs in Judgment Only as to Assignment of Error III with Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.